THE AMERICAN REVOLUTION AS A CONSTITUTIONAL CONTROVERSY

R. B. Bernstein, Daniel M. Lyons Visiting Professor in American
History
Brooklyn College/CUNY (1997-1998), and Adjunct Professor, New York Law
School

We begin with a mystery. In 1763, the British Empire was the most
successful, and the freest, that the world had ever seen. And yet, within
thirteen years, the thirteen mainland colonies of British North America --
the jewel in that empire's crown -- attempted something that no colony had
yet managed to do in human history: to revolt against the mother country.
The British could not understand it, nor could many Americans who wished
to remain loyal to King and country. What happened?

I. DEFINING THE CONSTITUTIONAL CONTEXT

Many myths surround what happened between Great Britain and her
rebellious colonists -- myths that had great persuasive power then, and
still do today. The most popular and most pervasive myth is that the
American Revolution was a simple tax revolt launched by people who were
tired of the burdens of paying for "big government" -- though not of the
benefits it conferred. According to this view, the Revolution had no
larger principled or substantive reason behind it.

Even many scholars who realize that the Americans and the British were
arguing about something real and important in the years between 1763 and
1776 do not grasp what the controversy was about. Many previous
historians lined up along the fault-lines of what is, in essence, a
false choice. Some historians (such as Robert Livingston Schuyler and
P.D.G.
Thomas) insist that, when American colonists denounced British colonial
policy as unconstitutional, they were arguing bad law, and they knew
it. Because the British consistently rejected those arguments as bad
law, the Americans invoked other arguments based on such vague notions
as natural rights and natural law. Other historians (such as Charles
McIlwain) insist that,
when British
policy-makers defended their policies as constitutional against American
arguments of unconstitutionality, they were arguing bad law, and they
knew it.

These arguments focus on what is essentially a false choice. We
have
lived under a written constitution at the core of which is the concept
of federalism, and under which perhaps the most enduring and perplexing
problem has been: which has the final word in a constitutional dispute
over the meaning of federalism, the states or the federal government?
The problem is that the framers and ratifiers of the Constitution wrote
and adopted that document against the background
of the American Revolution. They were aware of the dangers of a
constitutional system in which there was no way to resolve disputes
between the center and the peripheries -- between the general government
and the states, in the American setting, or between the mother country
and the colonies, in the British colonial context. Thus, under the
Constitution, the issue "who was right?" becomes a pivotal one, and
devising a means to resolve such issues becomes an issue of profound
significance.

By contrast, the real state of affairs between Great Britain and the
British colonists of North America between 1763 and 1776 was far more
complicated and agonizing than we remember it to be. Professor John
Phillip Reid of New York University Law School, the first historian to
examine seriously the constitutional history of the American Revolution
in decades, has provided the key. He argues that the initial stage of
the Revolution (1763-1776) was a complex constitutional argument. At
issue in that argument were two competing versions of the unwritten
British constitution, both of them rooted in the tumultous
constitutional struggles of the seventeenth century.

We must first understand what an unwritten constitution is: Great
Britain's constitution is not like the United States Constitution in
that it is not written down, or codified, in one authoriative document
that was framed and adopted at a specific time, or revised by amendment
at specific times. When eighteenth-century Britons -- or such approving
foreign observers as Voltaire and Montesquieu -- extolled the British
constitution, they meant the entire complex of statutes, common-law
judicial precedents, individual documents having constitutional status
(the most famous of which was Magna Carta), and customs and usages
making up, or constituting, the structure of government. Indeed, it was
only as a result of the dispute with Great Britain, leading to
independence, that American politicians and political thinkers
reformulated the idea of
constitution to mean a single written document at the core of a polity,
defining its government's powers and responsibilities and the limits on
those powers and specifying the rights of the people.

Because the British constitution was unwritten, however, that meant
that an array of understandings of its principles and terms could spring
up. Two of these understandings became the opposing positions in the
struggle between Great Britain and her American colonists in the
1760s and 1770s: The version of the British constitution espoused by the
Americans
taught that the British constitution is a restraint on arbitrary power,
from whatever source that threat comes -- whether King, Lords, or
Commons. Arbitrary power -- that is, unchecked power -- was a concept
broader than actual tyranny; it also included the potential to create or
impose tyranny. Thus, if Parliament could legislate for the colonies
without anyone being able to call it to account, then it was acting
arbitrarily and fostering tyranny. In sum, it was acting
unconstitutionally. Moreover, under this understanding of the unwritten
British constitution, the only persons whom a legislature such as
Parliament could tax were those who were actually represented there.
Parliament could not tax the Americans because no American could vote
for any member of the House of Commons; the only legislatures that could
impose taxes on Americans were the individual colonial legislatures.
Representation had to be actual, or it could not exist.

By contrast, the version of the British constitution expounded and
defended by British politicians -- and by such legal authorities as Sir
William Blackstone in his Commentaries on the Laws of England
(1765-1769) -- put Parliament at the core of the constitutional system.
Parliament (specifically, the House of Commons) was the guardian of
British constitutional liberty; it had earned and confirmed its role by
its valiant struggles against the tyranny of the Stuart kings of England
(notably Charles I and James II), who had tried to usurp power that the
constitution did not give them, even to the extent of trying to rule the
kingdom and tax its subjects without going to Parliament. The Crown and
the House of Lords, which the Americans had looked to as real checks on
Parliament, were only theoretically empowered to check the House of
Commons or the King's ministers. Thus, sovereignty -- or ultimate
political power -- rests with Parliament in partnership with the King.
A consequence of Parliament's central role in the constitutional system
was that each member of the House of Commons represented not merely
those who elected him but all the King's subjects; thus, even though
Americans were not actually represented in Parliament, they were
virtually represented there; thus, Parliament could impose taxes or
enact other legislation for the colonists even though the colonists were
not actually represented in the House of Commons.

If such contrasting understandings came into conflict, how was that
conflict to be resolved? These two understandings of the unwritten
constitution clearly cannot coexist; the issue then arises which of the
two conceptions of the British constitution is "correct." The problem
is that no single person or institution has the final say in resolving
such constitutional disputes. In other words, there is no final judge
who can reconcile them or can choose between them in an authoritative
fashion; thus, there may well be no way to determine which is
"correct." Previous
constitutional disputes of this sort were left prudently unresolved, for
attempts to resolve them authoritatively had the risk of testing the
fabric of the constitutional system too much for it to survive. Thus,
in addition to assessing its substantive and principled commitments,
each side in a major constitutional dispute of this sort had to gauge
the stakes of pushing its constitutional arguments to the brink.

As a result, we can best see the final epic constitutional dispute
(1763-1776) between Great Britain and the American colonists as a game
of "chicken" on a titanic scale. Could these conflicting understandings
have been resolved? James Otis -- the great Massachusetts attorney who
argued the famed "Writs of Assistance Case" (1761) that established the
unconstitutionality of general warrants -- hoped so. But, when he tried
to reconcile the two clashing positions, the pamphlet he wrote dissolved
into incoherence. Some historians (such as Gordon S. Wood) have noted
that Otis's struggle to reconcile these irreconcilable viewpoints may
well have helped to tear his mind to pieces. Thus, perhaps, the gap
between the American and British understandings of the unwritten English
constitution was perhaps unbridgeable.

II. FAILURES OF THE MIDDLE WAY: EXPERIMENTS WITH COLONIAL UNION

The British empire in North America arose almost as a series of
accidents. Different groups of colonists each set forth to establish a
new settlement in North America -- in different places, at different
times, for different reasons. Some were commercial ventures; others
were
havens of religious liberty for those who founded them (but not
necessarily for those of their neighbors who believed differently); at
least one other (Georgia) began as a penal colony.

How to coordinate, let alone govern, an American empire that was at
least two months away by ship? One way -- that, had it succeeded, would
have made unnecessary conflicts between the mother country
and its colonies -- would have been to forge a workable intercolonial
union that could coordinate the individual colonial governments for
shared goals without repeated recourse concerning individual policy
decisions to the mother country. The failure of repeated attempts to
achieve this goal left Great Britain with no choice but to govern the
colonies "long-distance" -- holding England's American colonies together
for purposes of defense and foreign policy and dealing with them
directly for the purposes of regulating trade and raising revenue.
Thus, by 1763, when Great Britain confronted a host of problems posed by
her American empire, British officials had no pre-existing formula for
dealing with them. Rashly, they sought to coordinate imperial affairs
from London -- without, however, realizing that they had to adapt
constitutional principles and structures, devised for a populous but
compact island nation, to an empire that seemed to be growing faster
than the administrative and political expertise they had available to
manage it.

The efforts to forge an intercolonial union began as early as 1643. In
that year, while England was convulsed by what became the English Civil
War, four of England's American colonies -- Plymouth, Massachusetts Bay,
New Haven, and Connecticut -- formed the New England Confederation.
(Throughout the Confederation's history, its members agreed to keep
Rhode Island out, distrusting the colony because of its policy of
religious liberty.) The Confederation, a defensive alliance against
depradations by hostile Indian nations and the French, had a council and
a president-general who worked with each colony's legislature. The
Confederation was largely successful for decades; by 1690, by which time
Massachusetts Bay has absorbed Plymouth and Connecticut has absorbed New
Haven, the Confederation came to a quiet
end.

The next attempt to create an intercolonial union was imposed from
outside the colonies. Beginning in 1686, King James II sought to bring
system and order to the often turbulent world of colonial American
governance. He organized the Dominion of New England and sent Sir
Edmund Andros to America as its governor-general. The Dominion folded
all the colonies from Massachusetts to Pennsylvania into one large
Dominion; its government would consist of a governor-general and a
council but no representative legislative bodies. As part of the
process of creating the Dominion, James revoked the colonies' existing
charters, which among other things guaranteed them representative
government. The colonists -- especially in Connecticut and
Massachusetts -- were infuriated by what they deemed an attempt to
deprive them of the rights of Englishmen. When news arrived in the
colonies of the Glorious Revolution of 1688 that forced James II to flee
his throne, the Americans similarly rebelled and overthrew Governor
Andros. The new monarchs, King William III (of the Dutch state of
Orange) and Queen Mary (sister of
James II), reaffirmed the colonial charters of the colonies that had
been condensed into the Dominion, thus bringing it to an end.

There attempts to formulate constitutional solutions to problems of
colonial administration rested until the early 1750s. For the first
half of the eighteenth century, a series of wars between the English,
their American colonists, and their Indian allies, and the French, their
colonists, and their Indian allies plagued the colonies. In 1754, at
the Albany Congress called by New York's royal governor, Sir William
Johnson, delegates from all the colonies except Georgia met with
representatives of the Iroquois Confederacy to consider the likelihood
of an impending war with France and to make plans to respond to such an
emergency. At the same time, Benjamin Franklin, a Pennsylvania delegate
to the Congress who had long pondered the problem of American union,
proposed and his colonial colleagues debated and approved a Plan of
Union. The Albany Plan of Union was a shrewd, well-meant attempt to
secure the empire and to resolve outstanding ambiguities within the
emerging imperial constitutional system; it posed the ultimate issue in
ways that could not be avoided or glossed over. It proposed that
America have a general
colonial legislature, which would tax the colonies for purposes of
defense, thus relieving the mother country of that burden. A
governor-general would represent the Crown, but the colonies still would
acknowledge the monarch of Great Britain as their sovereign.

The Albany Plan failed precisely because it posed the ultimate issues
so clearly, and because its solutions were too unpalatable to entrenched
interests on both sides of the Atlantic. The construction of a colonial
Union with its own legislature, sharing a common sovereign with Britain,
struck the British as too dangerous because it threatened the power of
Parliament (the sovereign). The construction of a unified,
super-colonial legislature overshadowing the colonial legislatures
struck colonial politicians as too dangerous because it threatened the
power of the colonial legislatures. Franklin shelved his plan, bitterly
complaining in later years that its adoption would have rendered an
American Revolution unnecessary. Thus ended the last real attempt to
devise intercolonial union. In the years following the Treaty of Paris
of 1763, rather than grasping and accommodating themselves to the
realities of a farflung imperial system that required tact and
sensitivity to administer, British officials acted on the basis of
unexamined assumptions mingled with a mother country's arrogant disdain
for peripheral colonials.

III. THE CONSEQUENCES OF CONSTITUTIONAL INCOHERENCE

At least one first-rank leader of the American Revolution dated the
crisis that led to that Revolution to 1761. In that year, at the height
of the war between France and Great Britain (in Europe known as the
Seven Years' War; in America, called the French and Indian War), a court
in Massachusetts decided what soon became known as the "Writs of
Assistance case." Writs of assistance were general warrants allowing
the bearer, usually a British customs or excise official, to search any
premises he chose and seize any contraband he might find there. It was
a measure to help customs authorities combat smuggling, but Americans
who valued their rights as Englishmen deemed these writs dangerous
because customs officials could use these writs as weapons against
anyone and everyone who stood in their way, whether they were smugglers
or not. Massachusetts lawyer James Otis persuaded the court that writs
of assistance were invalid under the unwritten British constitution.
Decades later, the aged John Adams, who as a young lawyer had watched
Otis's argument and the court's decision, declared, "Then and there the
Child Independence was born."

By 1763, with the end of the French and Indian (Seven Years') War,
Britain confronted a massive war debt. British politicians soon became
convinced that American colonists had had a free ride on the backs of
British taxpayers and determined to redress the balance. Moreover,
British officials had to try to organize and administer this vast
empire, taking account of the competing claims of the residents of the
colonies won from the defeated French, the Native American nations and
their leaders who sought to be free of colonial interference, and the
demands of colonists for the fruits of victory -- expanded land for
settlement and speculation. The task that the British government
assumed of reconciling these competing and irreconcileable claims soon
spun out of control. The familiar events of the 1760s and 1770s marked
out a stark pattern, one that increasingly suggested that tensions
within the British constitution as adapted to govern a British empire in
America were not only unresolved but unresolveable.

The great tragedy of this dispute was that neither side could grasp the
constitutional position of the other, let alone abandon its own position
to find common ground for compromise. And yet the dispute over the
meaning of the unwritten British constitution remained the context
within which the controversy between the colonists and the mother
country worsened and approached open breach.

Remembering this context provides an added layer of meaning for three
key episodes of the critical year 1776. First, in January, the pamphleteer
and journalist Thomas Paine
published his widely influential pamphlet, Common Sense. Paine's
tract succeeded in large part because Paine, fully aware of the
constitutional context of the dispute between the mother country and the
colonies,
shattered that context -- because he recognized that, as long as
Americans remained within it, it would imprison them and prevent them
from taking the final necessary step of embracing independence.
Therefore, Paine demolished the pretensions of the British
constitutional system as a guarantor of liberty and as consistent with
reason and human needs. He launched his enterprise with a withering
attack on the pretensions of monarchy -- after the rejection of the
Olive Branch Petition, the new focus of the Americans' sense of betrayal
and wrath. Loyalty to the monarchy was the last linchpin in the
Americans' loyalty to Britain and its constitutional system. By
demolishing monarchy, and then by exposing the vaunted British
constitution as built on monarchy, Paine put independence on the table
as a legitimate option for the Americans to consider. Furthermore, by
exploding the constitutional context, he also transformed the argument
from being the sole province of those politicians learned in the law,
customs, and usages of the British system to an argument in which all
Americans could and should take part.

Second, in May of 1776, the Second Continental Congress yielded to a
solid year of argument and importunity by John Adams of Massachusetts
and adopted a resolution calling on the Americans to frame new
constitutions to replace the colonial charters. George III's
declaration the previous fall that the colonies were out of his
allegiance and protection provided the justification for Congress's
resolution. In an adroit preamble (drafted by Adams), the Americans
shifted to the King the blame for the collapse of colonial governments
and the need to frame new independent constitutions of government. Yet
again, the structure and assumptions of the constitutional argument
between Britain and her American colonists was proving to be a force
impelling Americans to break with the mother country -- in the service
of the goals and principles they had long identified as central to
Anglo-American constitutionalism.

Third, on 2 July 1776, the Second Continental Congress adopted a
resolution (offered the previous month by Richard Henry Lee of Virginia)
declaring that the colonies "are, and of right ought to be, free and
independent states." Two days later, Congress adopted a Declaration
of Independence -- the latest in a series of formal declarations and
resolutions that marked out the spine of its ongoing argument with Great
Britain. The Declaration has become a pivotal document in American
public life; its eloquent preamble has come to symbolize the central
tenets of the American political creed. And yet, what was the
Declaration's purpose? Why did it assume the structure of argument that
it did? And what functions did Congress intend it to perform?

In 1981, in a pathbreaking essay entitled "The Irrelevance of the
Declaration," John Phillip Reid of New York University Law School argued
that the important part of the Declaration was not its preamble, but
rather its body of charges against George III. As Reid argued, the
Americans had not picked on the hapless monarch as an easy target;
rather, because of George's actions in late 1775 and early 1776, he had
had -- and had thrown away -- the last clear chance to avoid an open
breach with the colonies. Previously, the Americans had addressed their
complaints to Parliament; in the summer of 1775, in the Olive Branch
Petition (drafted by John Dickinson), they had shifted ground and
invoked the King's role as the nonpartisan patriot monarch of his whole
people, appealing to him to intervene in the dispute between Parliament
and the colonists. When George refused to do so, he assumed full
responsibility for the list of charges set forth as the body of the
Declaration. That list of charges became the Americans' last word in
the constitutional
argument that had raged for more than a decade.

In American Scripture, her 1997 study of the Declaration,
Pauline
Maier in essence argues that the declaration of American independence
was a political and constitutional act, by an institution (the Second
Continental Congress), by a people (as evidenced by the profusion of
local resolutions and declarations calling for independence before
Congress acted), through a process of literary reshaping of an
explanatory document (by Congress editing Jefferson's draft of the
Declaration) -- a document that, in turn, took on a life of its own as a
cultural, political, and constitutional symbol. The question Maier
poses is: "Which is more important, the action itself or the document
that has come to be the symbol of that action?"

One answer may be that all these scholars are right about at least part
of the question. The Declaration is Janus-faced; it looks backward,
tying off the constitutional dispute with the former mother country, and
forward, as a codification of political and constitutional principles on
which the Americans would base their new experiments in government. As
the political scientist Donald S. Lutz of the University of Houston has
argued in his 1988 study The Origins of American Constitutionalism,
the Declaration formed part of the American set of founding covenants --
with each of the state constitutions (some of which had incorporated the
Declaration's text into their preambles) and, on the national level,
first with the Articles of Confederation and then with the United States
Constitution.

Moreover, as John Phillip Reid points out in the afterword to his 1995
abridged edition of his Constitutional History of the American
Revolution, the constitutional argument between Britain and the
Americans persisted as well in specific clauses and institutional
arrangements of the American's state and federal constitutions.
Moreover, the need for an authoritative final judge in disputes between
the center and the periphery -- disputes that in the years between 1765
and 1776 could not be resolved -- contributed to the American
development of the doctrine of judicial review as a bulwark of
constitutional federalism. In these ways, the long and bitter argument
between Britons and Americans had a lasting, and positive, political,
constitutional, and
jurisprudential legacy.